P. v. Cornejo CA2/5

Filed 3/12/13 P. v. Cornejo CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B238945

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA094056) v.

MARCO ANTONIO CORNEJO et al.,

Defendant and Appellant.

APPEAL from the judgments of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed. Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant Marco Antonio Cornejo. Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant Alfonso Henry Talamantes. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, John Yang, Deputy Attorney General, for Plaintiff and Respondent. __________________________________

The jury found defendants and appellants Marco Antonio Cornejo and Alfonso Henry Talamantes guilty in count 1 of home invasion robbery (Pen. Code, §§ 211, 213, subd. (a)(1)(A)),1 in count 2 of first degree burglary of a residence with a person present (§§ 459, 667.5, subd. (c)), and in count 3 of assault with a deadly firearm (§ 245, subd. (a)(2)). The jury found true the allegations that a principal was armed within the meaning of section 12022, subdivision (a)(1) as to all counts as to both defendants; that Cornejo personally used a firearm within the meaning of section 12022.53, subdivision (b) as to count 1; and that Cornejo personally used a firearm within the meaning of section 12022.5 as to counts 2 and 3. The section 12022.53 (count 1) and section 12022.5 (counts 2 and 3) allegations were found not true as to Talamantes. In a separate proceeding, the trial court found that Talamantes had suffered two serious or violent prior felony convictions under the three strikes law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The trial court sentenced Cornejo to the upper term of nine years as to count 1, enhanced by ten years pursuant to section 12022.53, subdivision (b). The court imposed the midterm of four years on count 2, the midterm of three years on count 3, the midterm of four years as to both of the section 12022.5, subdivision (a) allegations (counts 2 and 3), and stayed the sentences pursuant to section 654. One-year enhancements were imposed pursuant to section 12022, subdivision (a)(1) and stayed under section 654. Talamantes was sentenced to the base term of 25 years to life as to count 1, plus one year for the firearm enhancement (§ 12022, subd. (a)(1)), and identical terms for counts 2 and 3, which the trial court stayed pursuant to section 654. We appointed counsel for defendants on appeal. Appointed counsel for Cornejo filed an opening brief raising no issues, but requesting this court to independently review the record for arguable contentions pursuant to People v. Wende (1979) 25 Cal.3d 436. Cornejo was advised of his right to file a supplemental opening brief. Cornejo filed a supplemental brief, in which he contends the testimony of Melesio Arteaga is not credible